R. Banumathi, J.
1. S.A. No. 256 of 1983: This Second Appeal is directed against the common Judgment and decree (dated 21.01.1983) in A.S. No. 10 of 1981 of District Court, Tiruchirapalli, which arose out of the common Judgment and decree in O.S. No. 962 of 1974 of Sub Court, Tiruchirappalli (dated 10.12.1979).
S.A. No. 1636 of 1985: This Second Appeal is preferred against the common Judgment and decree (dated 21.01.1983) in A.S. No. 87 of 1981 of District Court, Tiruchirapalli, which arose out of the common judgment and decree in O.S. No. 392 of 1975 of Sub Court, Tiruchirapalli (dated 10.12.1979).
2. Before we refer to the facts and the main grounds urged, it is necessary to refer to certain earlier proceedings. For convenience, parties are referred as in their original rank in O.S. No. 392 of 1975. Unsuccessful plaintiff, who lost his case before the Lower Appellate Court, is the present appellant. Due to the death of the respondents, earlier both the Second Appeals 256 of 1983 and 1636 of 1985 were dismissed by Justice E.J. BELLIE on 03.07.1992 as abated. Against the order of abatement, appellant preferred C.A.162 of 1993 before the Supreme Court. The appeal was allowed and the matter was remanded for fresh disposal.
3. Civil Appeal Nos. 822-823 of 1997 Supreme Court of India
After remand, both the appeals were heard by JUSTICE GOVARDHAN. Finding that Lower Appellate Court proceeded erroneously in placing the burden of proof upon the plaintiff - Subbiah Pillai proving the tenancy, judgments of Lower appellate Court were set aside and both the appeals were allowed. Aggrieved over allowing of both Second Appeals, D2 - Thirunavukkarasu Pillai had preferred these two Appeals before the Supreme Court. The Supreme Court set aside the judgment on the short grounds,
(i) that no substantial question of law has been framed as mandated under section 100 of C.P.C.;
(ii) allowing the appeals, the matter is remanded to this Court to consider whether any substantial question of law arises from the common impugned judgment.
Thus after the remand, both the appeals are before this Court for fresh disposal.
4. We may straightaway point out that even at the time of admission of the Second Appeals S.A. No. 256 of 1983 and S.A. No. 1636 of 1985, Substantial questions of law were framed as under:-
S.A. No. 256 of 1983:-
Whether the Lower Appellate Court is correct in law in reversing the entire decree of the Trial Court when only the first plaintiff has preferred the appeal and when the interests of the first plaintiff and that of the second plaintiff are distinct ?formulated on 17.02.1983.
S.A. No. 1636 of 1985:-
(1) Whether the Lower Appellate Court is correct in law in reversing the entire decree when only the first defendant alone has preferred an appeal and their interests is distinct ?
(2) Whether the Lower Appellate Court is correct in law in eschewing Ex.A-24, whose genuineness has not even been disputed by the defendants ?
formulated on 30.10.1985.
5. It is fairly conceded by both sides that the above substantial question of law formulated even at the time of admission of the Second Appeals as noted above were not brought to the notice of the Supreme Court.
6. Suit property relates to Survey No. 46/4 Nanjai - 4.90 Acres Mannachanallur, Lalgudi, Taluk, Trichy District. As suit property is the joint family property of the defendants and they are the owners of the same, D1 - Chandrasekara Pillai was in management and supervision of the suit property and other family properties. Case of the plaintiff is that he had taken the suit property on lease from D1 six years prior to the suit on payment of annual cash rent of Rs. 4,200/=. Plaintiff is in possession of the suit property by raising crops as cultivating tenant. In his capacity as the cultivating tenant, plaintiff had also obtained Identification Card for distribution of manure and fertilizers issued by the Panchayat Union. Plaintiff has also been raising loans in Mannachanallur Village Agricultural Cooperative Society for purchase of manure. As a tenant, plaintiff is also paying the kist for the suit property. D1 as Village Munsif had been demanding the plaintiff to surrender possession, which the plaintiff did not agree. Hence, defendants are trying to forcibly evict the plaintiff from the suit property and hence the suit for permanent injunction.
7. Denying that the suit property was ever leased to the plaintiff, defendants have filed written statement contending that plaintiff was never in possession of the suit property as cultivating tenant. With a view to defraud the defendants, plaintiff and the Village Karnam seems to have fabricated certain documents i.e. Identification Card for purchase of manure and fertilizers, etc. Plaintiff was engaged by the defendants only for irrigating their lands on daily wages. Plaintiff never raised any plantain crops nor was in possession of the suit property as cultivating tenant.
8. O.S. No. 392 of 1975 was filed originally on the file of District Munsif Court, Tiruchirapalli in O.S. No. 1152 of 1974. The same was transferred to Sub Court, Tiruchirapalli and re-numbered as O.S. No. 392 of 1975.
9. O.S. No. 962 of 1974 was filed by the defendants for recovery of possession. According to the defendants, after injunction was granted in O.S. No. 392 of 1975, taking advantage of the injunction using men power, plaintiff had trespassed into the suit property in August 1974 and harvested the paddy crops. Hence, the defendants filed this suit for recovery of possession.
10. Plaintiff resisted the suit filing written statement reiterating the averments that he is in possession of the suit property as cultivating tenant on payment of annual cash rent of Rs. 4,200/=. According to the plaintiff, he has been in possession of the suit property as cultivating tenant. In his capacity as tenant, he has also availed loan from the Mannachanallur Village Agricultural Cooperative Society and as a tenant, he had also paid the kist for the suit property. Claiming his entitlement to be in possession of the suit property as cultivating tenant, plaintiff resisted the suit filed by the defendants.
11. On the above pleadings, in the trial court, parties went on common trial and evidence was recorded in O.S. No. 392 of 1975. On the evidence of P.Ws.1 to 4 and Ex.A-24, Trial Court found that the plaintiff is a cultivating tenant. Defendants' case that the plaintiff was engaged by them only as Agricultural Labourer for irrigating the fields was negatived by the Trial Court. Trial Court further found that the plaintiff is entitled to claim benefit under Tamil Nadu Cultivating Tenants Protection Act, it was held that the defendants have no right to interfere with the plaintiff's possession and enjoyment of the suit land and thus O.S. No. 392 of 1975 was decreed. O.S. No. 962 of 1974 filed by the defendants was dismissed.
12. Lower Appellate Court / District Court, Tiruchirapalli reversed the findings of the Trial Court holding that much weight cannot be attached to the oral evidence of P.Ws.1 to 4. Pointing out that Ex.A-24 is the only document relied upon by the plaintiff about which no reference is made in the plaint, Lower Appellate Court held that the plaintiff had nothing to do with the suit property after 1971. Further finding that plaintiff trespassed into the suit property in or about 1974, suit O.S. No. 962 of 1974 was decreed directing the plaintiff to deliver vacant possession. Reversing the findings of the Trial Court, Lower Appellate Court dismissed the suit O.S. No. 392 of 1975. Aggrieved over the judgment of the Lower Appellate Court, the appellant / plaintiff filed these Second Appeals.
13. During the pendency of the second appeals, plaintiff died and his legal representatives are brought on record. Assailing the findings of the Lower appellate, learned Senior Counsel for the plaintiff Mr. Padmanabhan inter-alia made the following submissions;
(i) while the decree for permanent injunction was passed against both the defendants in O.S. No. 392 of 1975, the appeal A.S. No. 87 of 1981 filed by D2 alone is defective and cannot be sustained. Both the defendants, who are the co-owners, ought to have filed A.S. No. 87 of 1981; in the absence of production of document evidencing partition between D1 and D2, A.S. No. 87 of 1981 filed by D2 alone cannot be sustained;
ii) when the finding of the Trial Court that plaintiff is a cultivating tenant is based upon the appreciation of oral evidence, P.Ws.1 to 4 and Ex.A-24 and the entries thereon, Lower Appellate Court erred in interfering with the assessment of evidence;
(iii) Lower Appellate Court ought not to have disbelieved the entries in Ex.A-24, which are admittedly in the signature of D1 Chandrasekaran and his daughter.
14. Mr. Chandramouli, learned Senior Counsel appearing for the respondents submitted that the plaintiff has failed to establish the tenancy by any acceptable evidence and when the finding of the Lower Appellate Court that the plaintiff in O.S. No. 392 of 1975 is not proved to be a cultivating tenant, which is a question of fact, and therefore, no Second Appeal would lie on this question. Contending that the plaintiff is only a trespasser, against whom anyone of the co-owners is entitled to maintain the suit for possession and it is not open to the plaintiff in contending that the claim is to be restricted to the fractional interest although co-owner. In support of his contention, learned Senior Counsel placed reliance upon 78, Law Weekly page 86.
15. As noticed earlier, Second Appeals were admitted on the substantial question of law as indicated in para (4). In the light of the directions of the Supreme Court and upon consideration of the submissions and in view of the Full Bench decision of this Court reported in : AIR1980Mad180 , after hearing the arguments, the appellants were further heard for clarification as to the maintainability of the suit in O.S.392 of 1975. Upon such further hearing of the learned counsel and in the light of the Full Bench decision of this Court, it is necessary to formulate the following substantial question of law.
(i) In the light of denial of the status of the plaintiff as cultivating tenant and in view of Full Bench decision : AIR1980Mad180 and the bar imposed under section 16-A of Tamil Nadu Agricultural Lands Record of Tenancy Rights Act, 1969 (Act X of 1969) and Section 6 of Tamil Nadu Cultivating Tenants Protection Act (Act XXV of 1955), is not the jurisdiction of the Civil Court excluded to determine the status of the plaintiff ?
16. Before adverting to the merits of the submissions and the contentious points urged, we may first briefly refer to that evidence, which the courts below have concurrently eschewed:- (i)Ex.A-1 is the Certificate issued by the Karnam stating that the plaintiff is in possession of the suit property as cultivating tenant. Ex.A-1 was issued for the purpose of obtaining the manure through Mannachanallur Village Co-operative Agricultural Society. Pursuant to Ex.A-1, Ex.A-2 Identification Card was issued to the plaintiff for the suit land and another land in 1973. Likewise, Ex.B-6 is the Identification Card issued to D1 for the suit property and another item in 1973. Since the same Karnam had issued Exs.A-2 and B-6 Identification Cards for the supply of fertilizers to the rival claimants, in the view of the Lower Appellate Court, Karnam is not a Trustworthy person and no value could be attached to Exs.A-2 and B-6; (ii) The entry made in Ex.A-3 Loan Register maintained by Mannachanallur Village Agricultural Cooperative Society for 1973-74 showing borrowal of Rs. 1,200/= for purchase of fertilizers for the plantain crops raised in 1.50 acres of the suit survey No. 46/4. Exs.A-4 to A-7 are the receipts issued by the above Society for the repayment of the loan obtained by the plaintiff. Since Exs.A-4 to A-7 were issued on the basis of Ex.A-1, no value could be attached to Exs.A-4 to A-7; (iii) Ex.A-9 is the application (dated 29.07.1974) by the plaintiff to the Tenancy Tahsildar praying to register his name as cultivating tenant. Ex.A-10 is the notice sent by the Tahsildar calling upon the plaintiff to appear for enquiry on 23.08.1974. Ex.A-11 is the copy application made by the plaintiff. Both the courts below eschewed Exs.A-9 to A-11 on the ground that they are subsequent to the suit; (iv) Exs.A-12 to A-23 are only the documents to prove that P.Ws.2 to 4 are the neighbours owning or cultivating the lands adjacent to the suit property. Exs.A-12 to A-23 are only to the limited extent of ascertaining the credibility of P.Ws.1 to 3 and that the same will not prove the plaintiff's case as to whether he is a cutivating tenant or not; (v) On the same footing that Karnam is not a Trustworthy person, Exs.B-1 to B-5, certified copies of the Adangals and Ex.B-6 Identification Card for purchase of manure issued to D2 were eschewed from the purview of admissible evidence. Apart from eschewing the above documentary evidence, Lower Appellate Court also eschewed oral evidence of D.Ws.1 to 3.
17. In the light of the above approach of the courts below, we are left with evidence of P.Ws.1 to 4, D.W.4 and Ex.A-24 which is the sheet anchor of the plaintiff's case.
18. Maintainability of the Appeal A.S.10 of 1981 and A.S. No. 87 of 1981:- As noted earlier, suit O.S. No. 392 of 1975 was filed by the plaintiff against D1 - Chandrasekaran and D2- Thirunavukkarasu. After the suit was decreed, D2 Thirunavukkararu alone filed the first appeal A.S. No. 87 of 1981. D1 Chandraksearan was impleaded as second respondent. Likewise, O.S. No. 962 of 1974 - suit for possession was filed by D1 and D2. After dismissal of the suit, D2 - Thirunavukkarasu (1st plaintiff in O.S.962 of 1974) alone has filed A.S.10 of 1981. His brother Chandrasekaran was shown as 2nd respondent in A.S.10 of 1981. According to the 2nd defendant, during that time, partition had taken place between the brothers on 21.06.1974. According to D.W.4, suit property in Survey No. 46/4 was allotted to his father, D2. Further, according to D.W.4, in view of some dispute between his father, Thirunavukkarasu and his paternal uncle Chandrasekaran - D1 were not in talking terms with each other and hence he did not join in filing the appeals. When the suit property had fallen to the share of D2 and differences had arisen between the brothers, it cannot reasonably be expected that both brothers ought to have been joined in filing the appeal.
19. Further contention of the appellant is that when suit O.S. No. 962 of 1974 was decreed and possession granted in favour of both the defendants, appeal filed by one of the co-owners cannot be sustained. It is the further contention that the second defendant alone cannot get a decree for possession of the entire suit property and on that ground alone, impugned judgment of the First Appellate Court is to be set aside.
20. Countering the arguments of the appellant, learned Senior Counsel Mr. Chandramouli appearing for the 2nd defendant has explained that when the brothers had developed misunderstanding and not in talking terms and when the suit property is allotted to the share of D2, there is nothing improper or illegal for him to file appeal in A.S. No. 10 of 1981 for recovery of possession. It is further contended that D2 cannot be faulted for non-impleading of D1 Chandrasekaran in both the appeals. I find that the learned Counsel was right in contending that anyone of the co-owners can maintain the suit for ejectment against the trespasser. In support of his contention, learned Senior Counsel has placed reliance upon KARUPPAN ..vs.. PONNARASU AMBALAM (78 Law Weekly 86). Holding that the claim need not be restricted to the fractionl interest of the one co-owner, in the said decision held thus:-
'As against a trespasser any one of the co-owners may claim to be entitled to the entirety of the property. It is not open to the defendant in a suit who is merely in the position of a trespasser to say that as the plaintiff claims through only one co-owner, his claim should be restricted only to the fractional interest of that co-owner. Any one of the co-owners can maintain an action in ejectment against a trespasser'.
There is no impropriety in D2 filing the appeal without impleading his brother Chandrasekaran as the appellant. It is not as if that D1 is completely out of picture. He is actually impleaded as the second respondent. The arguments advanced as to the maintainability of appeals does not merit acceoptance.
21. Maintainability of the suit O.S. No. 392 of 1975:-
Admittedly, the defendants are the owners of the suit property in Survey No. 46/4 Nanjai. The initial presumption is that possession goes with the ownership. As against that, plaintiff claims to be in possession of the suit property as a cultivating tenant. It is for the plaintiff to establish the relationship of landlord and tenant and that relationship is continued till the filing of the suit. If the period of tenancy was over, it is for the plaintiff to prove his continued possession as tenant by Holding-over. Further, the burden is upon the plaintiff to prove the terms and conditions of the lease and that he continued to be in possession of the suit property on the same terms or on the varied terms even after the expiration of lease.
22. Plaintiff claims that he had become a cultivating tenant under D1 for a period of six years prior to the suit i.e. in or about 1968. Further case of the plaintiff is that the lease amount is cash of Rs. 4,200/= per annum. Plaintiff thus claims to be in possession and enjoyment of the suit property as cultivating tenant. Admittedly, there is no Written instrument of lease. Expressly denying the plaintiff's claim of tenancy right, defendants have filed the written statement alleging that the plaintiff was never the lessee of suit property and was never in possession of the same. According to the defendants, 'the plaintiff was engaged for irrigating the lands on wages and that he was not properly irrigating the lands, his services were terminated and aggrieved with that, plaintiff has come forward with a false suit.....'.
23. In the light of categorical denial of the status of the plaintiff, the main point that arose for determination in the suit was pertaining to status of the plaintiff. Admittedly, plaintiff is not registered as a cultivating tenant under the Tamil Nadu Agricultural Lands Record of Tenancy Rights act, 1969 (Act X of 1969). As per the known procedure of law, plaintiff, who claims to be in possession of the suit property, in his capacity as cultivating tenant, the best attainable evidence would be Registration of his name in the Record of Tenancy Rights or at least entry of his name in Column 6(a) of the Adangal maintained by the Revenue Officials. No such evidence of acceptable character is forthcoming.
24. Suit is instituted on the bare statement of the plaintiff that he is in possession of the suit property as cultivating tenant. It is not as if the plaintiff was not aware of the necessity to get himself registered under Act X of 1969. Section 4 of the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act (X of 1969) enables interested persons making application to the Record Officer for inclusion of particulars relating to such land in the approved record of Tenancy Rights.
25. Pursuant to requirement under section 4, plaintiff made Ex.A-9 application (dated 29.07.1974) before the Record Officer / Tenancy Tahsildar to register his name as cultivating tenant. In Ex.A-9, plaintiff referred to filing of the suit in O.S. No. 1152 of 1974 (O.S.392 of 1975) and also referring to the interim injunction granted in his favour. Plaintiff sought for registration of his name as cultivating tenant. On his application, Tahsildar, Lalgudi / Record Officer called upon the plaintiff to appear for enquiry on 19.08.1974 (Ex.A-10). Under Ex.A-11, plaintiff made Copy Application on 01.07.1977 requesting for issuance of a certified copy of the judgment of the Tahsildar dated 25.11.1974. His copy application was returned stating that the enquiry was still pending. Thus after the suit, plaintiff made efforts to get his name registered in the approved Record of Tenancy Rights.
26. Thus in the light of denial of plaintiff's status as cultivating tenant and in the absence of any acceptable evidence showing his status, the main issue arising for determination in O.S. No. 392 of 1975 is the status of the plaintiff: Whether he is a cultivating tenant or not A Full Bench of this Court in Periathambi Goundan ..vs.. District Revenue Officer : AIR1980Mad180 held that the Civil Court's jurisdiction is expressly excluded in view of Section 16 of Act X of 1969 in respect of the question whether a particular person is a cultivating tenant or not.
27. In the above decision of the Full Bench in : AIR1980Mad180 , the relative scope of the jurisdiction of the authorities constituted under the Act and the Civil Court having regard to the introduction of section 16-A in the Act was exhaustively considered. Holding that section 16-A of the Act was not intended to affect any suit instituted prior to its introduction, it was pointed out by the Full Bench that where the controversy is as to whether a particular piece of land has been let for cultivation by a tenant or not is one constituting the jurisdictional issue which has to be decided before the Record Officer. If the cultivating tenant files a suit for declaration that he is the cultivating tenant of the land in question and as a consequential relief prays for permanent injunction against the landowner-defendant, the primary relief being one of declaration of his status as a cultivating tenant, the other reliefs being consequential, the Civil Court may not have jurisdiction to decide the controversy with reference to which the primary relief is prayed for.
28. No doubt, in Muniyandi ..vs.. Rajangam Aiyer (1976-1 Madras LJ 287), Justice Ramanujam dealing with the contention regarding the jurisdiction of the Civil Court to entertain the suit as framed for permanent injunction and finding that the bar under section 16-A will not stand in the way of jurisdiction of the Civil Court in incidentally going into the question as to who is in possession of the suit property and in what capacity, held thus:-
'I am of the view that though Section 16-A excludes the jurisdiction of the Civil Court to determine a question which the authorities constituted under the Tamil Nadu Act X of 1969 had to decide, the present suit, which is one for mere injunction, can be maintained in the Civil Court. It is true that for the purpose of granting the relief of injunction claimed in the suit, the court has to incidentally go into the question as to who is in possession of the property and in what capacity. That fact that the court has to consider an incidental question for the purpose of granting the main relief claimed in the suit will not make the suit incompetent in a Civil Court'.
29. Likewise, in Karuppanna Gounder ..vs.. Ammal Appan (1983) 101 MAD LW 194 and Veeramalai Muthiriar ..vs.. E. Srinivas Muthiriar : AIR1985Mad128 , it was held that the jurisdiction of the Civil Court is not taken away when the suit is one for bare injunction and the primary relief of declaration of status as cultivating tenant is not sought for.
30. But, as pointed out earlier, in the present case, the main point for consideration is to determine the status of the plaintiff as cultivating tenant. More often than not, even in those cases where serious disputes are raised denying the status as cultivating tenant, suits are being instituted under the simple device of filing suits for bare permanent injunction invoking Section 27(c) of Tamil Nadu Court Fees and Suits Valuation Act. Further, instances are not uncommon, where on the bare statement of the plaintiff unaccompanied by any material worth saying, suits are instituted claiming status as cultivating tenant. When the status is denied at the time of filing of the written statement, serious disputes are not raised as to the maintainability of the suit. The parties straight go into the trial. Civil Courts are to be wary of those cases, where the very tenancy is denied by the defendants and the suits instituted under the colour of Bare Suit for Permanent Injunction.
31. As noted earlier, in the instant case also, defendants deny the status of the plaintiff as cultivating tenant. Further, the case of the defendants is that the plaintiff was engaged for irrigating the lands on wages. When there is such definite denial of status of the plaintiff, under Section 6 of Tamil Nadu Cultivating Tenants Protection Act (XX of 55) and Section 16-A of Act 10 of 1969, Jurisdiction of the Civil Court is barred. Under the above provisions, only the Record Officer or Authority empowered by the Act has to determine the matter ... and no injunction shall be granted by any court in respect of any action taken ... in pursuance of any power conferred by or under this Act. In the light of the fact, where the predominant question arising for determination and the defendants posing serious defence denying the status, the Civil Court cannot assume the jurisdiction merely because the plaint is couched in such a form to bring the suit within the ambit of Section 27(c) under the colour of which most vexatious litigations are fought out.
32. I find the case in hand is an illustrious example of one such instance, where the suit is being filed under the simple device of invoking section 27(c) of the Act. Let me further elaborate this. The case of the plaintiff is unclear as to whether the tenancy is oral or written. In his evidence, P.W.1 has stated that the tenancy is oral; but in Ex.A-9, Application to Tahsildar to register him as a cultivating tenant, plaintiff has referred to Written agreement of lease. No convincing evidence is adduced showing the tenancy. According to the plaintiff, he asked the 1st defendant Chandrasekara Pillai when he met him in the Bazaar, which appears quite unbelievable. Certainly on tenancy, evidence is found to be lacking. In the light of denial of tenancy and the defendants terming the plaintiff as trespasser, I find that the suit O.S.392 of 1975 ought to have been filed for Declaration of his Status as 'cultivating tenant'. The Jurisdiction of the Civil Court is not at all attracted, merely because the plaintiff has conveniently omitted to seek declaration under the simple device of invoking section 27(c) of the Act.
33. At this juncture, we may usefully refer to the decision reported in : AIR1984Mad235 (Pankajam ..vs.. Chinnaswamy Naidu), wherein it was held, 'Where the very letting of the suit properties to the respondent for cultivation had been disputed and though it may be that the authorities have to decide that question as a jurisdictional fact before considering the other matters which would be relevant under section 3(2), yet, those are all matters over which the Record Officer or the other authority functioning under the Act alone will have jurisdiction and the Civil Court cannot go into those questions. If the Civil Court cannot proceed to investigate whether the respondent is a cultivating tenant or not, then equally it cannot declare that he has such rights. The consequential relief of injunction, if at all, could be granted only upon a finding that the respondent is a cultivating tenant. The consequential relief of injunction depends upon the adjudication with reference to the status of the respondent and when that cannot be done by the Civil Court, then the consequential relief also cannot be granted'.
34. The above referred cases (1983) 101 MLW 194 and : AIR1985Mad128 are the cases, where the only incidental question arose for determining the status for consideration in a case of finding with reference to nature and character of possession. But the case in hand before us stands entirely on a different footing, where the Court is primarily called upon to determine as to the declaration of status of the plaintiff. Therefore, as per the Full Bench decision of this Court and : AIR1984Mad235 , I find that the jurisdiction of the Civil Court is excluded in view of the express bar under section 16-A of Act X of 1969 and under Section 6 of Act XXV of 1955.
35. Even on factual aspects, plaintiff's case is found to be wanting, uncertain and unclear as to whether the tenancy is oral or written. To establish the tenancy, plaintiff has examined himself as P.W.1 and the persons, who are cultivating adjacent land owners as P.Ws.2 to 4. As noted earlier, to prove that the plaintiff is a tenant, best attainable evidence would be the Registration of his name in Column 6(a) of the Adangal. If really the plaintiff was cultivating tenant, definitely his name would have been registered in Column 6(a) of Adangal. Non-inclusion of his name in the Adangal substantially weakens his case.
36. Plaintiff has adduced only oral evidence by examining P.Ws.2 to 4. P.Ws.2 to 4 are said to be cultivating their lands respectively situated on North, East and South of the suit land. There is no denial that P.Ws.2 to 4 are cultivating the adjacent lands. To record the finding that P.W.1 is the cultivating tenant, Trial Court accepted the oral evidence of P.Ws.2 to 4, who corroborated the version of P.W.1. But the Lower Appellate Court reversed the finding of the Trial Court saying 'that the evidence of P.Ws.2 to 4 does not serve the purpose of establishing the tenancy of the plaintiff...leaving aside the oral testimony found to be not satisfactory...'. This finding of reversal of oral evidence is very much assailed by plaintiff / appellant. The learned Senior Counsel appearing for the appellant / plaintiff submitted that the Lower Appellate Court ought not to have interfered with such acceptance of oral evidence by the Trial Court.
37. In my considered view, the above argument does not merit acceptance. It is not as if, the Lower Appellate Court rejected the oral evidence without adverting to or considering the same. In para (9) of the judgment, the Lower Appellate Court has carefully weighed and considered the oral evidence of each of the witnesses, namely, P.Ws.2 to 4. P.W.2 is in cultivation of the land of his sister-in-law Kamalathammal for about twenty years. He is in cultivation of the land - Kumichi belonging to Samayapuram Mariamman Temple on the eastern side of the suit property. According to P.W.2, he has no personal knowledge about the Lease Agreement between the plaintiff and D1. When P.W.2 has no personal knowledge about the tenancy, the Lower Appellate Court was right in not attaching any value to his evidence.
38. Likewise P.W.3 and his father Perumal are in cultivation of the lands on the eastern side for about 25 years. P.W.3 has stated that the suit land is in cultivation of the plaintiff from 1961. According to P.W.3, only he has persuaded D1 to lease out the suit property to the plaintiff. Further, in his evidence, P.W.3 has stated that in the Village 'Tom Tom' was effected and thereafter, name of P.W.3 was recorded as Cultivating Tenant for his lands. If the lands which were under cultivation of P.W.3 was so recorded in his name, it is difficult to comprehend as to why the land under the cultivation of plaintiff (viz., the suit property) was not registered in his name. Further, in his evidence P.W.3 has stated that the tenancy amount was Rs. 4,200/= per annum. As discussed infra, there is no material evidencing the payment of the rent 'Kuthagai' amount of Rs. 4,200/=. When P.W.3 has referred to certain aspects which P.W.1 himself has not stated, Lower Appellate Court was right in not attaching much credence to the evidence of P.W.3.
39. P.W.4 is also said to be cultivating the land on the northern side. According to him, he had known about the cultivation of the plaintiff of the suit property from 1971. Trial Court accepted the evidence of P.Ws.2 to 4 finding that their evidence substantially corroborate the evidence of P.W.1 to the effect that he is in possession and enjoyment of the suit land for the past ten years.
40. Referring to the oral evidence of P.Ws.2 to 4 and pointing out that they are only adjacent land owners, Lower Appellate Court found that P.ws.2 to 4 had no personal knowledge or that their evidence does not convincingly prove the tenancy. By so saying, Lower Appellate Court rejected the oral evidence of P.Ws.2 to 4. This approach of the Lower Appellate Court is assailed on the ground that the First Appellate Court ought not to have interfered with the assessment of oral evidence. True, normally the Lower Appellate Court would not interfere to displace the opinion of the Trial Judge when it relates to oral evidence. But it is not as if the Lower Appellate Court is always precluded from interfering with the assessment of oral evidence by the Trial Court. Before the First Appellate Court, the appeal lies on facts and it is certainly a Final Court on factual aspects. Where the question of assessment of evidence is not of credibility, when it is a question of inference of one fact on the proved primary facts, the Court of Appeal is as good as position of the Trial Judge and is free to reverse the findings.
41. By a careful reading of the Judgment of the Trial Court, it is clear that while accepting the evidence of P.Ws.2 to 4, it has not assigned any reason or expressed any opinion as to their credibility or that their evidence secures the confidence of the Court; but the Trial Court merely stated that their evidence corroborate the version of P.W.1. When the Trial Court has not assigned any reason as to the credibility of P.Ws.2 to 4, in my view, the Lower Appellate Court while assessing the evidentiary value, can certainly interfere with the verbal testimony of P.Ws. 2 to 4. This Court finds no erroneous approach in assessment of evidence by the First Appellate Court.
42. As regards the appreciation of evidence by the Appellate Court and the powers of the Appellate Court in interfering with the finding of the Trial Judge, we could usefully refer to SARJU PERSHAD ..vs.. JWALESHWARI : [1950]1SCR781 , in which it has been held thus:-
'The duty of the appellate Court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial Court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the Court, outweighs such finding'.
Thus I find, the Lower Appellate Court was competent to re-assess the oral evidence of P.Ws.2 to 4 and reverse the finding of fact arrived at by the Trial Judge.
43. The main piece of evidence on which the findings of the Courts below hinges upon is ExA-24. Ex.A-24 is the Pocket Note Book containing the entries said to be the payment of money made by P.W.1 to D1 and his daughter Vijayalakshmi. P.W.1 claims that the amount paid by him is the rent for the suit land. D.W.4, son of D2 had admitted the entries in Ex.A-24 in the hand-writing of his paternal uncle D1 Chandrasekaran and his daughter Vijayalakshmi. According to D.W.4, the plaintiff was engaged by them. But the case of the defendants is that they supplied plantain and that the amount mentioned in Ex.A-24 relate to the amount paid regarding the dealings in supply of plantain. Accepting the case of the plaintiff, the trial Court found that the entries in Ex.A-24 relate to the payment of rent for the suit land for 1970-71. Trial Court accepted the plaintiff's case regarding the entries in Ex.A-24, merely saying that D1 Chandrasekaran was not examined to explain the entries in Ex.A-24 which are in his Handwriting. In its view, D1 would have been the proper person to speak about the dealings in plantain and that money was paid only towards the supply of plantain.
44. Since the entire dispute revolves around Ex.A-24, on which there is conflict of findings between the Courts below, I have carefully considered the entries in Ex.A-24. Ex.A-24 Receipt Book contains certain entries as to the payment on various dates 02.06.1971 (Rs. 2,400/-); 29.07.1971 (Rs. 200/-); 31.07.1971 (Rs. 100 + Rs. 200/-); 18.08.1971 (Rs. 650/-). Absolutely, there is nothing to indicate that money was paid towards the rent - 'Kuthagai' amount. The expression @Kd;gf;fg;go@ is no way advantageous to the plaintiff. It may be pointed out that Ex.A-24 is not a regular Account Book nor does it contain the periodical payment of annual rent of Rs. 4,200/= per annum from 1969. Merely because the entries in Ex.A-24 are admitted to be in the signature of D1 or his daughter, it does not lead to the conclusion that it relates to the payment of annual rent. In my considered view, the findings of the Lower Appellate Court is compatible with the entries and the evidence on record. The Lower Appellate Court has recorded cogent and convincing reasons for not accepting Ex.A-24.
45. Discarding Ex.A-24, the Lower Appellate Court came in close quarters with the entries in Ex.A-24. The Lower Appellate Court assigned convincing reasons in finding that Ex.A-24 cannot establish the payment of annual rent by the plaintiff. The reasonings of the Lower Appellate Court cannot be said to be erroneous, much less a perverse approach, calling for interference.
46. Tenancy of the plaintiff in the suit property is not proved; nor has he proved that he is contributing his own physical labour in cultivation of the suit property. When his status as cultivating tenant is denied, as found earlier, the suit O.S. No. 392 of 1975 itself is not maintainable. Case of the defendants that the plaintiff was only engaged for supervision in the irrigation of the plantain and other crops and that he was removed for his unsatisfactory work is very probable. Further case of the defendants that the plaintiff trespassed into the suit property in August 1974 is also accepted by the Lower Appellate Court on the evidence of D.W.4. The case set up by the plaintiff that he is in possession as tenant was rightly disbelieved by the Lower Appellate Court.
47. Since the plaintiff is found to be a trespasser in the suit property, the Lower Appellate Court rightly granted decree for recovery of possession. Rightly plaintiff was found to be wrongful possession and that he is bound to deliver vacant possession. It is submitted by the learned Senior Counsel for the appellant / plaintiff that the only remedy available to the plaintiff is to approach the cultivating Tenancy Tahsildar / Record Officer to get recovery of possession as contemplated under the provisions of the Act. The fallacy in this argument is per se clear. The plaintiff is not registered as cultivating tenant in the Record of Tenancy nor his name would be found in the Registry. While so, the land owner cannot approach the Tenancy Tahsildar seeking for eviction of the tenant of recovery of possession.
48. Having found to be a trespasser, plaintiff has no legitimate right to be in possession. Without any right, plaintiff cannot seek permanent injunction. The parties seeking injunction must possess some right and prove that the opponent is trying to invade in his possession. No such legitimate right of the plaintiff is set forth or proved without any right or possessory title, plaintiff is not entitled to seek for the equitable relief of injunction in O.S. No. 392 of 1975. Before a party can ask a court to exercise discretion in his favour, must show that he has some equities in his favour which would impel a Court to exercise discretion in his favour. In the alternative the party seeking injunction must possess some right which the opposite-party is trying to invade or there must exist an obligation in its favour whether contractual or otherwise in respect of which the opposite party is trying to commit a breach. It is settled position that no injunction could be granted against the true owner at the instance of the person, who is in unlawful possession.
49. The suits are of the year 1974 and the parties are entangled in the litigation for more than three decades. The case in hand is an illustrious example as to how a person, who has no legitimate basis to be in possession can use the Court procedure as a convenient lever to retain his unlawful possession. On this point, the concern expressed by the Supreme Court in 1994 (I) LW 21 (SC) could usefully be referred, which read thus:- 'The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands, we are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation'. It may be pointed out, that if a person in unlawful possession is so minded, he can drag on the proceedings for decades together if he has the means to do so. In this case, the plaintiff derives that means from the Nanjai lands itself which he is in possession. The case in hand is one such example where the Court process is being abused to retain the possession without any legitimate basis.
50. The findings of the Lower Appellate Court is well based on evidence and materials on record. There is no wrong approach or infirmity warranting for interference.
51. S.A. No. 256 of 1983:- Therefore, the common Judgment and Decree in A.S. No. 10 of 1981 of District Judge, Tiruchirapalli (dated 21.01.1983) (arising out of O.S.962 of 1974) is confirmed and this Second Appeal is dismissed with the costs of the respondents.
S.A. No. 1636 of 1985:- Therefore, the common Judgment and Decree in A.S. No. 87 of 1981 of District Judge, Tiruchirappali (dated 21.01.1983) (arising out of O.S.392 of 1975) is confirmed and this Second Appeal is dismissed with the costs of the respondents.